https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4400

Munoko & 2 others v Simiyu (Enviromental and Land Originating Summons E003 of 2025) [2026] KEELC 4400 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4400 (KLR) Republic of Kenya In the Environment and Land Court at Bungoma Enviromental and Land Originating Summons E003 of 2025 AK Bor, J July 1, 2026 Between Priscillar Nanjala Munoko 1st Plaintiff Martin Lutatwa Simiyu Nyoti 2nd Plaintiff William Mangalabo Nyoti 3rd Plaintiff and Roselyne Naliaka Simiyu Defendant Ruling 1.The Plaintiffs brought the application dated 1/4/2025 seeking a temporary injunction to restrain the Defendant, her family members and agents from interfering with the Plaintiffs’ occupation and use of the portion of land measuring 2 acres comprised in Kimilili/Kamukuiywa/1035 (the suit land) pending hearing and determination of this suit. The grounds on which the application is based are that the Plaintiffs have been in occupation and use of the suit land since 1982 and the Defendant recently uprooted the boundary features and was in the process of forcefully evicting the Plaintiffs from the suit land. 2.Priscillar Nanjala Munoko swore the affidavit in support of the application and exhibited the sale agreement dated 16/8/1982 between the Defendant’s late husband and the late Isaac Nyoti Sabuni. She deponed that upon purchasing the suit land, Isaac Nyoti was given vacant possession of the land. That he constructed and used the land for farming with his children and wife before his demise. She also exhibited the application for Land Control Board (LCB) consent dated 17/8/1982. That by the time the vendor, Simiyu Watosia died in 1990, he had not taken any action to evict the Plaintiffs who claimed to have been on the suit land for over 43 years. The Plaintiffs attached photographs of the land showing their houses and some crops. 3.The Defendants and interested parties brought the application dated 23/6/2025 seeking to have the suit struck out on the ground that it was res judicata following the determination of Kimilili SPMCCC No. 55 of 2018. The other contention is that the suit offended Order 37 Rule 7 (2) of Civil Procedure Rules. The Respondent, Roselyne Naliaka Simiyu swore the affidavit in support of the application and deponed that the 1st Plaintiff is the wife of Isaac Nyoti Sabuni while the 2nd and 3rd Plaintiffs are his children. She deponed that the suit land in this case, Kimilili/Kamukuywa/1035, was the same subject matter in the Kimilili case in which the court held that Kimilili/Kamukuywa/1386, which was supposed to be a subdivision of Kimilili/Kamukuywa/1035, did not exist. She exhibited copies of the proceedings and judgment delivered in Kimilili SPMCCC No. 55 of 2018. She argued that this suit was brought to circumvent the proceedings in the Kimilili court and urged that the suit was res judicata. Further, that the certified extract of the title over the suit land had not been annexed as required by Order 37 Rule 7 of the Civil Procedure Rules. 4.Priscillar Nanjala Munoko swore the replying affidavit opposing the Defendant’s application. She annexed a copy of the extract title for Kimilili/Kamukuywa/1035. She maintained that the parties in the two suits were different as was the subject matter. She contended that the subject matter in the Kimilili case was Kimilili/Kamukuywa/1035 and not Kimilili/Kamukuywa/1386 that was the subject matter of the judgment in the Kimilili Magistrate’s court case. 5.The application was canvassed through written submissions. The Plaintiffs contended that the Defendant had not taken any steps to evict them from the suit land and reiterated that the parties and nature of claim was different in the two cases. 6.The Defendants submitted that the subject matter in this suit is Kimilili/Kamukuywa/1035, which was heard fully and dismissed on merit in Kimilili SPMCCC No. 55 of 2018. She urged that the suit was an abuse of the court process. 7.The issue for determination is whether the suit is res judicata and if it is not whether the court should grant an injunction restraining the Defendant from evicting the Plaintiffs. Looking at the pleadings which were filed in Kimilili SPMCCC No. 55 of 2018, it is clear that Isaac Nyoti Sabuni pleaded that he was entitled to 2 acres in Kimilili/Kamukuywa/1386 and sought an injunction to restrain the Defendant from evicting him from that land. He also sought to have the court execute the transfer documents for Kimilili/Kamukuywa/1386 for 2 ½ acres. The Defendant pleaded at paragraph 5 of the Amended Defence dated 18/6/2019 that the Plaintiff bought 1 ½ acres which she was prepared to transfer to the Plaintiffs on condition that the Plaintiffs cleared the balance of Kshs. 180,000/= but not the 2 ½ acres sought. In the judgment delivered on 6/9/2019, the Learned Magistrate found that the 1st Plaintiff’s husband’s claim was time barred because the cause of action arose in 1982 and 1984. The court also found that there were other registered proprietors who were not made parties to the suit. 8.What was sought in the previous suit was an injunction and the transfer of 2 ½ acres in Kimilili/Kamukuywa/1386 which the trial court found did not exist. This claim is for adverse possession and not specific performance of the contract of sale entered into in 1982. What is not in contention is that the Plaintiffs have erected structures on the suit land where they live and use part of the land for farming. This confirms occupation. The gravamen of the dispute is whether the Plaintiffs’ occupation of the suit land is adverse to the Defendant. It is in the interest of justice that the claim for adverse possession progresses to its logical conclusion. 9.The court declines to make a determination that this suit is res judicata. The court grants prayer 4 of the application dated 1/4/2025 to the effect that the status quo on Kimilili/Kamukuywa/1035 will be maintained until this suit is heard and determined. Each party will bear its costs for the applications dated 23/6/2025 and 1/4/2025. DELIVERED VIRTUALLY AT BUNGOMA THIS 1ST DAY OF JULY 2026.K. BORJUDGEIn the presence of: -Priscillar Munoko, Martin Nyoti and William Nyoti- PlaintiffsMr. Kennedy Wamacho for the Defendant and Interested PartiesCourt Assistants- Bett & Metrine